{ "id": 5214639, "name": "DOLORES D. PERINO et al., Plaintiffs-Appellants, v. KRISTINE ELDERT et al., Defendants-Appellees", "name_abbreviation": "Perino v. Eldert", "decision_date": "1992-05-22", "docket_number": "No. 3\u201491\u20140651", "first_page": "602", "last_page": "606", "citations": [ { "type": "official", "cite": "229 Ill. App. 3d 602" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "491 N.E.2d 458", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 258", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3447911 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0258-01" ] }, { "cite": "579 N.E.2d 963", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5799809 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0448-01" ] }, { "cite": "445 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 198", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435507 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0198-01" ] }, { "cite": "524 N.E.2d 974", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3584902 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/1036-01" ] }, { "cite": "150 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "13 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2775531 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/13/0443-01" ] }, { "cite": "479 N.E.2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 777", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3528902 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0777-01" ] }, { "cite": "90 N.E. 216", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "243 Ill. 80", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3414380 ], "opinion_index": 0, "case_paths": [ "/ill/243/0080-01" ] }, { "cite": "120 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "3 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2694137 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/3/0116-01" ] }, { "cite": "501 N.E .2d 282", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 904", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3461608 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0904-01" ] }, { "cite": "577 N.E.2d 807", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 582", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5284836 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0582-01" ] } ], "analysis": { "cardinality": 415, "char_count": 7384, "ocr_confidence": 0.783, "pagerank": { "raw": 7.181100842601303e-08, "percentile": 0.429939930860834 }, "sha256": "e08bc179c4ea68c7d2af2dc29e0495cf0620ff5309cc117f34779e05be507160", "simhash": "1:6b2dcede690957e5", "word_count": 1259 }, "last_updated": "2023-07-14T21:04:36.221708+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOLORES D. PERINO et al., Plaintiffs-Appellants, v. KRISTINE ELDERT et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HAASE\ndelivered the opinion of the court:\nThe plaintiffs, Dolores D. Perino and Wallace E. Prince, filed a complaint against the defendants, Kristine Eldert and the estate of Bernice Guardalabene, seeking to enforce the provisions of the 1961 joint will of Bernice Guardalabene. The trial court granted the defendants\u2019 motion for summary judgment. The plaintiffs appeal. We affirm.\nBernice and C.L. Prince were married in 1944. In 1961, the two jointly executed a will whereby they left all of their property to each other and with a further provision that the surviving testator shall give his or her entire estate to C.L. Prince\u2019s children from a former marriage: Dolores D. Perino and Wallace E. Prince.\nC.L. died in 1964. His property then passed to Bernice. Sometime in 1965, Bernice married Edward Guardalabene. In 1982, Edward died.\nIn 1988, Bernice executed a new will leaving her property to her nieces and nephews and naming Kristine Eldert as executrix. After Bernice\u2019s death in 1990, Kristine presented the 1988 will for probate and it was admitted. Plaintiffs Perino and Prince subsequently petitioned in probate to substitute the 1961 will on the theory that the latter will was a joint and mutual will which became irrevocable upon the death of the first testator, C.L. Prince. The trial court dismissed the petition and this court affirmed on appeal, finding that the probate court was not the proper forum for the plaintiffs to raise a claim about a contract not to revoke the 1961 will. Perino v. Eldert (1991), 217 Ill. App. 3d 582, 577 N.E.2d 807.\nThereafter, the plaintiffs filed a two-count complaint in the chancery court of Knox County seeking enforcement of the 1961 will and an injunction preventing the distribution of Bernice\u2019s property under the terms of the 1988 will.\nThe trial court granted the defendants\u2019 motion for summary judgment. In so doing, the court found that the 1961 will was not a joint and mutual will and, therefore, did not create a contract between C.L. and Bernice not to revoke the will.\nOn appeal, the plaintiffs argue that the 1961 will was a joint and mutual will which became irrevocable upon C.L.\u2019s death in 1964. A party asserting that a particular will is a joint and mutual will has the burden of establishing that by clear and convincing evidence. In re Estate of Signore (1986), 149 Ill. App. 3d 904, 501 N.E .2d 282.\nThe contract embodied in a joint and mutual will becomes irrevocable after the death of one of the testators. (In re Estate of Edwards (1954), 3 Ill. 2d 116, 120 N.E.2d 10.) In the past, Illinois case law provided that a joint will of a husband and wife created a presumption that such a will was executed pursuant to a contract between the testators not to revoke the will. (Frazier v. Patterson (1909), 243 Ill. 80, 90 N.E. 216.) However, this presumption has been eroded. (See In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500.) More recently, courts have been reluctant to permit the fact of joint execution between husband and wife to be conclusive and have looked to the provisions of the will itself and to other proof to adduce the testators\u2019 intentions. (In re Estate of Edwards (1954), 3 Ill. 2d 116, 120 N.E.2d 10; Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 150 N.E.2d 144; King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974.) Accordingly, we will look to the document itself to determine the testators\u2019 intentions.\nThere are five common characteristics of a \u201cjoint and mutual will\u201d that have been repeatedly recognized by Illinois courts. (Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77; In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500.) Those characteristics are: (1) the label the testators have assigned to the will\u2014 whether they refer to it as a joint and mutual will; (2) the use by the testators of common plural terms such as \u201cwe\u201d and \u201cour\u201d; (3) the pooling of the testators\u2019 interests into one joint fund whether previously owned jointly, in common, or severally; (4) reciprocal provisions in the will \u2014 whether the testators made a disposition of the entire estate in favor of the survivor of them; and (5) a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares. In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 579 N.E.2d 963.\nExamining the above-mentioned characteristics, we note that the testators labeled their will \u201cLAST WILL AND TESTAMENT\u201d and in the first paragraph stated that \u201c[w]e *** declare this to be jointly as well as severally, our Last Will and Testament.\u201d The testators did not use the word \u201cmutual\u201d in referring to the instrument. Instead, they used the word \u201cseverally,\u201d which is completely opposite of \u201cmutual.\u201d Thus, the first characteristic courts look at is absent in this case.\nWe are aware that a court is not precluded from finding an instrument to be a joint and mutual will because it lacks such a label. (See In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 579 N.E.2d 963; In re Estate of Arnold (1986), 142 Ill. App. 3d 258, 491 N.E.2d 458.) Moreover, courts have found wills to be joint and mutual even though the first paragraph defined the will as \u201cjointly as well as severally our last will and testament.\u201d However, in those cases where the courts have found a joint and mutual will despite the absence of the proper label, the courts have further found that the other four characteristics of a mutual will were satisfied.\nIn the present case, the will also lacked the fifth characteristic of a common dispositive scheme under which the parties dispose of the fund by bequeathing it to their heirs in approximately equal shares. Here, the testators bequeathed and devised all their property to C.L.\u2019s heirs. Bernice\u2019s heirs did not receive any shares, let alone equal shares.\nIn King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974, the will in question gave the survivor all property in \u201cFee Simple Absolute Forever.\u201d The will then provided that upon the death of both testators, only the husband\u2019s heirs, namely his son and daughter by women other than the testator\u2019s wife, could inherit the estate. The King court found that the document did not create a common dispositive scheme and, therefore, it was not a joint and mutual will.\nSimilarly, the will in the case at bar provided that the survivor became the beneficiary of \u201call real and personal property of the deceased testator, to have and to hold as said surviving testator\u2019s own absolute property forever.\u201d The will then provided that the survivor\u2019s only legatees were the husband\u2019s heirs. As in King, the will in the instant case did not create a common dispositive scheme.\nAccordingly, we find that since the 1961 will lacked two important characteristics for creating a joint and mutual will, the trial court properly granted the defendants\u2019 motion for summary judgment.\nThe judgment of the circuit court of Knox County is affirmed.\nAffirmed.\nGORMAN and SLATER, JJ., concur.", "type": "majority", "author": "JUSTICE HAASE" } ], "attorneys": [ "Robert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria, for appellants.", "Jonathon T. Schlake and Bill Butts, both of Bill Butts Barrister, Ltd., of Galesburg, for appellees." ], "corrections": "", "head_matter": "DOLORES D. PERINO et al., Plaintiffs-Appellants, v. KRISTINE ELDERT et al., Defendants-Appellees.\nThird District\nNo. 3\u201491\u20140651\nOpinion filed May 22, 1992.\nRobert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria, for appellants.\nJonathon T. Schlake and Bill Butts, both of Bill Butts Barrister, Ltd., of Galesburg, for appellees." }, "file_name": "0602-01", "first_page_order": 624, "last_page_order": 628 }